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Give Me Dignity by Giving Me Death": Using Balancing to Uphold Death Row Volunteers' Dignity Interests Amidst Executive Clemency

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Give Me Dignity by Giving Me Death "GIVE ME DIGNITY BY GIVING ME DEATH": USING BALANCING TO UPHOLD DEATH ROW VOLUNTEERS' DIGNITY INTERESTS AMIDST EXECUTIVE CLEMENCY NICOLE F. DAILO ABSTRACT Oregon death row inmate Gary Haugen recently became the first criminal defendant to challenge a state governor's exercise of the executive clemency power. By suing to expedite his impending execution amidst Governor John Kitzhaber's decision to temporarily suspend the death penalty in Oregon, Haugen raised significant questions about the scope of a governor's clemency power and the dignity interests implicated when death row inmates "volunteer" to die by foregoing further appeals of their cases. This Note proposes adoption of a balancing test to evaluate governors' grants of clemency, arguing that state courts should uphold a death row inmate's decision to "volunteer" for execution if the grant of clemency does not align with traditional clemency objectives recognized by the U.S. Supreme Court. This Note also suggests additional measures states can take to better protect and advance death row inmates' dignity interests. * Class of 2014, University of Southern California Gould School of Law; B.A. Communication 2011, University of Southern California. I would like to thank Professor Elizabeth Henneke for her insightful suggestions and guidance as well as the Southern California Review of Law and Social Justice for its invaluable editing and advice on this Note. I would also like to thank my wonderful friends and family, especially Rod and Christie Dailo, for their unwavering love and support. 249 250 REVIEW OFLA WAND SOCIAL JUSTICE [Vol.23:2 TABLE OF CONTENTS I. INTRODUCTION ............................ ........ 250 II. DEVELOPING A NEW LEGAL STANDARD THROUGH SUPREME COURT JURISPRUDENCE .................. 253 A. LIMITING THE EXECUTIVE CLEMENCY POWER: THREE TRADITIONAL PURPOSES ...................... ..... 254 B. DIGNITY INTERESTS DEFINED AS AUTONOMY IN THE DEATH PENALTY CONTEXT ............................ 261 C. AUTONOMY IN THE DEATH PENALTY CONTEXT: DEATH Row VOLUNTEERISM AND THE RIGHT TO WAIVE APPEALS ................................... ..... 268 III. BALANCING AUTONOMY AND REPRIEVE INTERESTS: DOCTRINE AND PRACTICE........................ 273 A. NARROW TAILORING AS A SCALE IN THE DEATH PENALTY REPRIEVE CONTEXT. ......................... ...... 274 B. AN INMATE'S AUTONOMY INTEREST PREVAILS: THE CASE OF OREGON'S BLANKET REPRIEVE....................... 279 C. A STATE'S BLANKET MORATORIUM PREVAILS: THE CASES OF MARYLAND AND ILLINOIS ............... ......... 284 IV. ADDITIONAL REMEDIES TO PROTECT DIGNITY INTERESTS OF DEATH ROW VOLUNTEERS.. ......... 288 A. REFORMATION OF CURRENT CLEMENCY PROCEDURES ......... 288 B. NEW LEGISLATION MODELED ON PHYSICIAN-ASSISTED SUICIDE STATUTES. .......................... ...... 290 V. CONCLUSION .............................................. 292 "[W]ith adults I see absolutely no justification for setting other people's views of what is good for them above their own ideas of what is good for themselves." "Not even if they themselves are happy about it later?" "We're not talking about happiness, we're talking about dignity and freedom. Even as a little boy, you knew the difference. It was no comfort to you that your mother was always right."' I. INTRODUCTION In 2012, death row inmate Gary Haugen sought to reclaim a right that he believed the State of Oregon had taken from him: the right to choose to die. "This is my free will. This is my constitutional right," he told 1 BERNHARD SCHLINK, THE READER 141-42 (Carol Brown Janeway trans., Pantheon Books 1997) (1995). 2014] DIGNITY BY DEA TH: DEATHROW VOLUNTEERS 251 presiding Judge Timothy P. Alexander.2 Haugen, who was convicted and sentenced to life in prison in 1981 for killing his former girlfriend's mother, was sent to death row in 2007 for killing a fellow inmate at the Oregon State Penitentiary. 3 Although his execution was initially set for December 6, 2011, Haugen found himself embroiled in a legal battle with Oregon Governor John Kitzhaber, who issued a blanket reprieve to all Oregon death row inmates shortly after Haugen's execution date was confirmed.4 Lasting only for the remainder of Governor Kitzhaber's term, the reprieve temporarily halted all executions in the state.s Haugen and his attorneys refused the reprieve and argued that an inmate must accept it for it to be valid.6 Although Judge Alexander agreed,7 the Oregon Supreme Court did not. In ruling for Governor Kitzhaber on appeal, the court held, inter alia, that the governor's judgment in deciding to issue the reprieve was not subject to judicial review and that, in any event, acceptance by an inmate is not required to validate a reprieve.8 Consequently, the reprieve remains in effect and Haugen's execution has once again, been postponed against his wishes.9 Haugen is not the only inmate seeking to expedite his execution. Since 2011, at least two other death row inmates, one in California and 2 Chris McGreal, Oregon Governor in Wrangle with Death Row Inmate Suing for the Right to Die, GUARDIAN (Sept. 14, 2012, 3:46 PM), http://www.guardian.co.uk/world/2012/sep/14/ oregon-governor-death-row-inmate. Bill Chappell, Death Row Inmate Fightsfor Right to Die in Oregon, NPR (Mar. 14, 2013, 5:08 PM), http://www.npr.org/blogs/thetwo-way/2013/03/14/174340080/death-row-inmate- fights-for-right-to-die-in-oregon; Lynne Terry, Gary Haugen Can Reject Gov. Kitzhaber's Reprieve, Judge Rules, OREGONIAN (Aug. 3, 2012, 2:56 PM), http://www.oregonlive.com/ pacific-northwest-news/index.ssf/2012/08/gary haugen can reject gov kit.html. 4 Terry, supra note 3. 5 Id. 6 McGreal, supra note 2. Terry, supra note 3. Judge Alexander's ruling can be accessed online at http://media.oregonlive.com/pacific-northwest-news/other/Judge AlexandersHaugen Ruling .pdf. 8 Haugen v. Kitzhaber, 306 P.3d 592, 609 (Or. 2013) (en banc) (explaining that the governor's judgment behind issuing the reprieve is not subject to review because the governor acted within the bounds of his constitutional authority); Helen Jung, Oregon Supreme Court Denies Death Row Inmate Gary Haugen's Bidfor Execution, OREGONIAN (June 20,2013, 10:47 PM), http://www.oregonlive.com/pacific-northwest-news/index.ssf/2013/06/oregon supreme court decision.html. 9 Helen Jung, Death Row Inmate Gary Haugen Vows to Keep Up Fight to Overturn Reprieve, OREGONIAN (August 21, 2013, 2:21 PM), http://www.oregonlive.com/pacific- northwest-news/index.ssf/2013/06/death row inmate gary haugen v.html [hereinafter Jung, Fight]. 252 REVIEW OFLA WAND SOCIAL JUSTICE [Vol.23:2 one in South Dakota, volunteered to hasten their sentences.10 Haugen's case is noteworthy, however, because he was fighting not only against the state criminal justice system, but also against the state's chief executive. Despite the unsuccessful outcome for Haugen," his case raises important questions about the protection of inmates' dignity and autonomy interests, and the scope of the executive clemency power. This Note proposes a new legal standard for evaluating whether a competent' 2 death row inmate's decision to volunteer for execution should be upheld against a grant of executive clemency, specifically when it takes the form of a blanket reprieve. 13 By combining the relevant legal doctrines into one balancing test, the proposed standard weighs an inmate's dignity interest against a state's interest in preserving its chief executive's clemency power. Essentially, this standard holds that a death row inmate's dignity interest, expressed through his or her autonomous decision to waive further appeals and volunteer for execution, should be upheld when a blanket reprieve is not narrowly tailored to serve its traditionally 10Carol J. Williams, Death Row Inmates' Desire to Die Renews Debate, L.A. TIMES, Nov. 25, 2011, http://articles.latimes.com/201 I/nov/25/local/la-me-death-row-volunteers-20111126. " This Note recognizes that Haugen intends to continue to fight against the reprieve, but acknowledges that the Oregon Supreme Court's decision upholding it is the latest legal determination of its constitutionality. 12The proposed balancing test deals only with competent inmates' decisions to volunteer, primarily because the Supreme Court has held that competent criminal defendants have the right to make their own legal decisions, see infra Part II.C, and that, in any event, executing incompetent inmates who are unable to comprehend the proceedings and the ramifications of waiving their rights is unconstitutional. See Ford v. Wainwright, 477 U.S. 399, 409-10 (1986). In September 2011, Marion County Circuit Judge Joseph Guimond determined that Haugen was competent to make his own decisions regarding the legal strategy in his case, including whether to dismiss his current counsel and whether to waive any further appeals. Helen Jung, Judge: Death Row Inmate Gary Haugen Competent to Make Legal Decisions, OREGONIAN (Sept. 27, 2011, 4:47 PM), http://www.oregonlive.com/pacific-northwest-news/index.ssf/2011/09/ judge deathrowinmate garyha.html. Judge Guimond's decision was based largely on the testimony of a Portland psychologist, who concluded, despite Haugen's apparent personality disorder and antisocial behavior, that Haugen understood his legal options and their consequences. Id. One month later, Judge Guimond also deemed Haugen competent to be executed, based on Haugen's answers to a series of questions gauging Haugen's "understanding of his legal options and the reasons for his execution." Helen Jung, 'I'm Ready, ' Oregon Death Row Inmate Gary Haugen Tells Judge; May Face Execution Dec. 6, OREGONIAN (Oct. 7, 2011, 8:31 PM), http://www.oregonlive.com/pacific-northwest-news/index.ssf/201 1/10/ im readyoregondeath row inma.html. 13 Ex parte United States, 242 U.S. 27, 43-44 (1916); Molly Clayton, Note, Forgiving the Unforgivable: Reinvigorating the Use of Executive Clemency in Capital Cases, 54 B.C. L. REV. 751, 754-55 (2013); see also Solesbee v. Balkcom, 339 U.S. 9, 11-12 (1950) (characterizing a postponement of execution based on an inmate's insanity as a reprieve), abrogated on other grounds by Ford v.
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